Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance and its inability to directly address issues of underfunding or to prospectively set substantive standards for indigent defense representation.

This Article is the first to argue that the reincorporation of equality principles—rooted in the fundamental right of access to the courts—into indigent defense reform can address some of the doctrinal gaps left by the more traditional Sixth Amendment approach and provide a conceptual framework that targets the root causes of systemic indigent defense failures. An approach grounded in equal access and not solely on the vindication of the right to counsel allows reformers to: attack issues of resource allocation directly without filtering them through the lens of attorney conduct, reach resource inequities beyond the provision of counsel, prospectively define substantive elements of a meaningful defense, and clear a more direct path to necessary normative judgments about what those elements must be. The choice to reclaim equality as a basis for indigent defense reform recognizes that unequal access to resources precludes the enforcement of substantive rights and forces a decision between the commitment to access for justice to all or only for those who can afford it.

A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

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